Smith
County seeks a writ of mandamus directing the trial court to
vacate its orders of April 17, 2017 and May 12, 2017,
compelling disclosure of three closed sessions of the Smith
County Commissioners Court.[1] We deny the petition for writ of
mandamus as moot.

Background

On June
16, 2016, the previous Smith County judge, Joel Baker, was
indicted for closing a regular meeting of the Smith County
Commissioners Court to the public on the dates of July 8,
2014, July 29, 2014, and August 12, 2014, in violation of
Chapter 551, Subchapter D, of the Texas Government Code. At
these meetings, the commissioners court discussed the
installation of speed cameras in county school zones by
American Traffic Solutions (ATS). Baker executed a
"professional services agreement" with ATS.

Following
the recusal of the duly elected Smith County district
attorney, a Smith County district judge appointed
"Assistant Attorney General Adrienne McFarland, or any
other Assistant Attorney General that they designate" as
criminal district attorney pro tem to handle the case. In
August 2016, in his capacity as the criminal district
attorney pro tem for Smith County, Daniel Brody, Assistant
Attorney General for the State of Texas, received recordings
of the three aforementioned commissioners court meetings that
Baker had convened in closed session. On December 12, 2016, A
Judgment of Plea of No Contest in Misdemeanor Cause was
entered against Baker, who received thirty days "non
report" deferred adjudication probation and a fine of
$200. Baker had previously resigned as county judge.

On
March 24, 2017, Brody, in his capacity as an assistant
attorney general for the State of Texas, received a request
under the Public Information Act to turn over the recordings
of the three closed commissioners court meetings. One week
later, Brody sent the following electronic mail message to
the presiding judge in the Baker case:

Dear
Hon. Jack Carter,

Good afternoon. Attached to this email is a motion I wanted
to file with you, cc'ing defense counsel, related to a
Public Information Act request the Office of the Attorney
General received. In a "conflict of law" related
issue, as part of the Joel Baker prosecution, our office is
now in possession of Closed Meetings of Smith County
Commissioners Court. A citizen has asked for copies of those
relevant Closed Meetings that were a part of the case.

Normally we would comply with providing the requestor copies
of all the permitted documents allowed to be turned over by
law, under the Public Information Act, once the criminal
matter is closed. Of course, however, TOMA[2] declares that it
would be a crime to turn over the Closed Meetings without
lawful authority and without the District Judge's
permission. With this conflict in mind, and wanting to comply
with the Public Information Act by turning over all permitted
public documents without criminally violating the Open
Meetings Act, I have attached a motion and order for your
consideration.

If the Closed Meetings, or relevant portions of the Closed
Meetings became public record, in compliance with TOMA, and
as described in my motion, then the lawful authority vested
in your Order of the Court would permit the OAG to comply
with the Public Information Act request without violating any
other laws.

I am available if you have any additional questions.

Regards,

Daniel Brody

Assistant Attorney General

Texas Attorney General's Office

Criminal Prosecutions Division

White Collar Crime & Public Integrity Section

In
reply, Judge Carter expressed the belief that his plenary
power in the case had ended, but that he might be able to
enter further orders in the case if Presiding Judge Mary
Murphy of the First Administrative Judicial Region reassigned
him to Baker's case. On April 7, 2017, Judge Murphy
signed an order assigning Judge Carter to the case. After
Brody filed a motion, Judge Carter entered the following
order:

IN THE 114th JUDICIAL DISTRICT COURT OF SMITH COUNTY, TEXAS

THE STATE OF ...

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